FOIA Facts: Dear Attorney General Gonzales

It was refreshing to hear your
comments to the Associated Press last
month, in which you stated that you are reconsidering your predecessor’s
guidance restricting public access to information under the FOIA.

In that spirit, I write to you with some opinions on what I believe should
be in your revised policy. As a former government FOIA attorney, I am more
than aware of the impossibility of just releasing every scrap of paper and
byte of electronic information in government files. There are loads of
reasons for validly withholding information and I acknowledge that fact. I
also state that many who write about your predecessor’s policy link that
policy to 9/11. As almost every new administration revises its
predecessor’s FOIA policies, I believe that the fact that the Ashcraft
policy was in the works before 9/11 and would have been handed down even
if the attacks had not occurred.

In my opinion, the policy of the previous administration, to release
anything that would not cause foreseeable harm even if it is arguably
withholdable under the FOIA was a good policy. I strongly urge that you
reinstate it, and then follow through by actually allowing Department of
Justice attorneys to not defend lawsuits where the information fits that
category.

However, I do not believe you should stop there in crafting your FOIA
policy. Much of the public’s unhappiness has very little to do with the
release decisions made in the FOIA process. As an attorney dealing with
FOIA matters and someone who speaks with many FOIA requesters, I can tell
you the failure for agencies to adequately communicate with FOIA
requesters on a timely basis is the single biggest frustration that people
have with the FOIA.

I know for a fact that many lawsuits are brought, not because of a denial
of the request, but because the agencies have failed to communicate with
the requesters on a timely basis on where the request is in the FOIA
process. FOIA requesters are by and large, reasonable people. A short
e-mail or note telling the requester where the request is and why there
has been a delay is enough to keep people somewhat happy. While some
agencies are very good at doing this, many are not. In fact, one of
Senator Cornyn’s proposals is a database
for requesters to be able to track where their FOIA requests are in the
system. I urge you to not wait for this legislation to occur and to
develop either a database yourself, or to issue guidance for agencies to
contact requesters on a thirty day cycle telling them where the request
is.

While I have many other tedious comments to improved FOIA processing and
releases, I won’t bore you with them all. While any improvements in the
FOIA system will cost money initially, I do believe that money will be
saved by decreased litigation costs over the long run.

Thank you for your time. If you wish to discuss my views on FOIA further,
feel free to contact me.

[Editor's Note: The
Coalition of
Journalists for Open Government has issued two new reports, one
of which addresses overall federal agency responses to FOIA requests, and
the second which provides a review of FOIA litigation decisions during the
period of 1999 through 2004. The text of the reports are available
in one document, 14 pages, PDF.]